[Federal Register Volume 87, Number 231 (Friday, December 2, 2022)]
[Notices]
[Pages 74209-74212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26270]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2020-0021; Notice 2]


Mercedes-Benz USA, LLC, Grant of Petition for Decision of 
Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Grant of petition.

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SUMMARY: Mercedes-Benz AG (MBAG) and Mercedes-Benz USA, LLC (MBUSA) 
(collectively, ``Mercedes-Benz'') have determined that certain model 
year (MY) 2019 Mercedes-Benz A-Class motor vehicles do not fully comply 
with Federal Motor Vehicle Safety Standard (FMVSS) No. 104, Windshield 
Wiping and Washing Systems. Mercedes-Benz filed a noncompliance report 
dated February 24, 2020. Mercedes-Benz subsequently petitioned NHTSA on 
March 12, 2020, and later provided supplemental material on July 9, 
2020, for a decision that the subject noncompliance is inconsequential 
as it relates to motor vehicle safety. This notice announces the grant 
of Mercedes-Benz's petition.

FOR FURTHER INFORMATION CONTACT: Neil Dold, Office of Vehicle Safety 
Compliance, the National Highway Traffic Safety Administration (NHTSA), 
telephone (202) 366-7352, facsimile (202) 366-3081.

SUPPLEMENTARY INFORMATION:

I. Overview

    Mercedes-Benz has determined that certain MY 2019 Mercedes-Benz A-
Class motor vehicles do not fully comply with the requirements of 
paragraph S4.1.2 of FMVSS No. 104, Windshield Wiping and Washing 
Systems (49 CFR 571.104). Mercedes-Benz filed a noncompliance report 
dated February 24, 2020, pursuant to 49 CFR part 573, Defect and 
noncompliance responsibility and reports. Mercedes-Benz subsequently 
petitioned NHTSA on March 12, 2020, and later provided supplemental 
material on July 9, 2020, for an exemption from the notification and 
remedy requirements of 49 U.S.C.

[[Page 74210]]

chapter 301 on the basis that this noncompliance is inconsequential as 
it relates to motor vehicle safety, pursuant to 49 U.S.C. 30118(d) and 
30120(h) and 49 CFR part 556, Exemption for inconsequential defect or 
noncompliance.
    Notice of receipt of Mercedes Benz's petition was published with a 
30-day public comment period, on June 12, 2020, in the Federal Register 
(85 FR 35990). No comments were received. To view the petition and all 
supporting documents log onto the Federal Docket Management System 
(FDMS) website at https://www.regulations.gov/. Then follow the online 
search instructions to locate docket number ``NHTSA-2020-0021.''

II. Vehicles Involved

    Approximately 4,145 MY 2019 Mercedes-Benz A220 and A220 4MATIC 
motor vehicles manufactured between August 3, 2018, and November 26, 
2019, are potentially involved.

III. Noncompliance

    Mercedes-Benz explains that the noncompliance is that the 
windshield wiping systems in the subject vehicles do not wipe the 
percentage of the windshield as required by paragraph S4.1.2 of FMVSS 
No. 104. Specifically, because of variations in the manufacturing 
process, the windshield wiping system may not meet the manufacturer's 
design specifications and thus may only wipe 93.8% of Area B of the 
windshield instead of the 94% minimum required.

IV. Rule Requirements

    Paragraph S4.1.2 of FMVSS No. 104 includes the requirements 
relevant to this petition. When tested wet in accordance with SAE 
Recommended Practice J903a (1966), each passenger car windshield wiping 
system shall wipe the percentage of designated Areas A, B, and C of the 
windshield (established in accordance with S4.1.2.1) that (1) is 
specified in column 2 of the applicable table following subparagraph 
S4.1.2.1 and (2) is within the area bounded by a perimeter line on the 
glazing surface 25 millimeters from the edge of the ``daylight 
opening.''

V. Summary of Mercedes-Benz's Petition

    The following views and arguments presented in this section, ``V. 
Summary of Mercedes-Benz's Petition,'' are the views and arguments 
provided by Mercedes-Benz and do not reflect the views of the Agency. 
Mercedes-Benz described the subject noncompliance and contended that 
the noncompliance is inconsequential as it relates to motor vehicle 
safety.
    In support of its petition, Mercedes-Benz submitted the following:
    1. Mercedes-Benz cited the definition of ``motor vehicle safety'' 
as cited in the National Traffic and Motor Vehicle Safety Act of 1966 
and their belief is that this matter is appropriate for a decision that 
the noncompliance is inconsequential to motor vehicle safety as it does 
not present any increased risk to vehicle occupants.
    2. They state that, in the subject vehicles, the portion of the 
windshield that falls just below the minimum wiped area is located at 
the outer edge of the windshield. In the worst-case scenario, only 
93.8%, instead of the minimum 94%, of the Area B portion of the 
windshield remains wiped (note: the petition erroneously stated 
``unwiped'' rather than ``wiped''). In the original petition, Mercedes-
Benz stated that the affected portion of Area B is located at the outer 
edge of the passenger's side of the windshield; however, in a 
subsequent communication with NHTSA, they clarified that the affected 
portion of Area B is located at the outer edge of the driver's side of 
the windshield rather than the passenger's side.
    3. Mercedes-Benz asserts that NHTSA has previously considered the 
performance of windshield wiper systems in the context of interpreting 
the meaning of the term ``daylight opening'' in FMVSS No. 104. 
Mercedes-Benz says that in 2003, in response to a request from a 
manufacturer, NHTSA interpreted that opaque coatings located around the 
edge of the windshield would not be considered part of the daylight 
opening for purposes of calculating the starting point of the wiped 
area. See Letter to Reed, May 6, 2003. This interpretation was an 
apparent change in approach for several manufacturers. In a request for 
reconsideration, the industry reported that many vehicles would not 
meet the minimum wiped portion of Area B based on the Agency's new 
interpretation. In supporting comments, two manufacturers reported that 
there were multiple vehicle models that would not meet the 94% minimum 
requirement for Area B. For one of the manufacturers, all of its 
vehicles were no more than 93.2% of the Area B minimum, while the other 
manufacturer did not provide specific information on how far its system 
deviated from the Area B minimum. After considering the substantial 
resources necessary to redesign the wiper systems outside of the normal 
vehicle refresh schedule, the Agency delayed the date on which it would 
begin enforcement of FMVSS No. 104 based on its updated interpretation. 
See Letter to Strassburger, January 7, 2005.
    4. Thus, while the Agency was alerted to the fact that certain 
vehicles would not be able to comply with the minimum wiped area 
requirements of FMVSS No. 104, the Agency delayed implementing 
enforcement of the new interpretation for several years. While the 
delay was based, in part on the additional complexities needed to 
update the vehicle, fundamentally, the small deviation in the minimum 
wiped area requirement appears to not have been considered one that 
adversely impacted driver visibility or increased the safety risk to 
vehicle occupants. In that case, the deviation from the minimum wiped 
portion of Area B was more than what exists in the subject vehicles. 
While it is unclear from the interpretation letters what portion of 
Area B did not meet the minimum wiped requirements, in the subject 
vehicles, only a narrow strip of a portion of the outer edge of the 
driver's side of the windshield is affected by the deviation. Due to 
the location and small size of the unwiped area, the deviation would 
not affect the visibility of the driver or their ability to safely 
operate the vehicle and would not lead to an overall increased safety 
risk to the vehicle occupants.
    5. Mercedes-Benz stated that the windshield wiper systems installed 
in the subject vehicles otherwise meet or exceed the remaining 
requirements in FMVSS No. 104 for the wiped portion of Areas A and C, 
for wiper frequency, and the windshield washing system. Mercedes-Benz 
has not received any reports related to a lack of visibility due to the 
performance of the windshield wiping system at issue here.
    Mercedes-Benz concluded by again contending that the subject 
noncompliance is inconsequential as it relates to motor vehicle safety, 
and that its petition to be exempted from providing notification of the 
noncompliance, as required by 49 U.S.C. 30118, and a remedy for the 
noncompliance, as required by 49 U.S.C. 30120, should be granted.
    Mercedes Benz's complete petition and all supporting documents are 
available by logging onto the Federal Docket Management System (FDMS) 
website at: https://www.regulations.gov and by following the online 
search instructions to locate the docket number as listed in the title 
of this notice.

VI. NHTSA's Analysis

    The burden of establishing the inconsequentiality of a failure to 
comply

[[Page 74211]]

with a performance requirement in a standard--as opposed to a labeling 
requirement with no performance implications--is more substantial and 
difficult to meet. Accordingly, the Agency has not found many such 
noncompliances inconsequential.\1\ Potential performance failures of 
safety-critical equipment, like seat belts or air bags, are rarely 
deemed inconsequential.
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    \1\ Cf. Gen. Motors Corporation; Ruling on Petition for 
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899 
(Apr. 14, 2004) (citing prior cases where noncompliance was expected 
to be imperceptible, or nearly so, to vehicle occupants or 
approaching drivers).
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    An important issue to consider in determining inconsequentiality 
based upon NHTSA's prior decisions on noncompliance issues was the 
safety risk to individuals who experience the type of event against 
which the recall would otherwise protect.\2\ NHTSA also does not 
consider the absence of complaints or injuries to show that the issue 
is inconsequential to safety. ``Most importantly, the absence of a 
complaint does not mean there have not been any safety issues, nor does 
it mean that there will not be safety issues in the future.'' \3\ 
``[T]he fact that in past reported cases good luck and swift reaction 
have prevented many serious injuries does not mean that good luck will 
continue to work.'' \4\
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    \2\ See Gen. Motors, LLC; Grant of Petition for Decision of 
Inconsequential Noncompliance, 78 FR 35355 (June 12, 2013) (finding 
noncompliance had no effect on occupant safety because it had no 
effect on the proper operation of the occupant classification system 
and the correct deployment of an air bag); Osram Sylvania Prods. 
Inc.; Grant of Petition for Decision of Inconsequential 
Noncompliance, 78 FR 46000 (July 30, 2013) (finding occupant using 
noncompliant light source would not be exposed to significantly 
greater risk than occupant using similar compliant light source).
    \3\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of 
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
    \4\ United States v. Gen. Motors Corp., 565 F.2d 754, 759 (D.C. 
Cir. 1977) (finding defect poses an unreasonable risk when it 
``results in hazards as potentially dangerous as sudden engine fire, 
and where there is no dispute that at least some such hazards, in 
this case fires, can definitely be expected to occur in the 
future'').
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    Arguments that only a small number of vehicles or items of motor 
vehicle equipment are affected have also not justified granting an 
inconsequentiality petition.\5\ Similarly, NHTSA has rejected petitions 
based on the assertion that only a small percentage of vehicles or 
items of equipment are likely to actually exhibit a noncompliance. The 
percentage of potential occupants that could be adversely affected by a 
noncompliance does not determine the question of inconsequentiality. 
Rather, the issue to consider is the consequence to an occupant who is 
exposed to the consequence of that noncompliance.\6\ These 
considerations are also relevant when considering whether a defect is 
inconsequential to motor vehicle safety.
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    \5\ See Mercedes-Benz, U.S.A., L.L.C.; Denial of Application for 
Decision of Inconsequential Noncompliance, 66 FR 38342 (July 23, 
2001) (rejecting argument that noncompliance was inconsequential 
because of the small number of vehicles affected); Aston Martin 
Lagonda Ltd.; Denial of Petition for Decision of Inconsequential 
Noncompliance, 81 FR 41370 (June 24, 2016) (noting that situations 
involving individuals trapped in motor vehicles--while infrequent--
are consequential to safety); Morgan 3 Wheeler Ltd.; Denial of 
Petition for Decision of Inconsequential Noncompliance, 81 FR 21663, 
21664 (Apr. 12, 2016) (rejecting argument that petition should be 
granted because the vehicle was produced in very low numbers and 
likely to be operated on a limited basis).
    \6\ See Gen. Motors Corp.; Ruling on Petition for Determination 
of Inconsequential Noncompliance, 69 FR 19897, 19900 (Apr. 14, 
2004); Cosco Inc.; Denial of Application for Decision of 
Inconsequential Noncompliance, 64 FR 29408, 29409 (June 1, 1999).
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    NHTSA has evaluated the merits of the inconsequential noncompliance 
petition submitted by Mercedes-Benz and has determined that this 
particular noncompliance is inconsequential to motor vehicle safety. 
Specifically, the Agency considered the following when making its 
decision:
    1. Given the inconsistent information in the petition about which 
portions of the windshield did not meet the Standard, NHTSA requested 
additional information from Mercedes-Benz. On July 9, 2020, Mercedes-
Benz responded, and the supplemental information provided is available 
on the FDMS website.\7\ In the worst-case scenario presented in this 
data, Area C is completely (100%) wiped, as required by the standard. 
Area A, according to this data, has a wiped area of 91%--exceeding the 
standard's minimum threshold of 80%--while the wiped portion of Area B 
is slightly below the required minimum 94% threshold at 93.8%.
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    \7\ Regulations.gov/docket/NHTSA-2020-0021.
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    2. The magnitude of the deviation from Mercedes-Benz's design 
specification was also considered. Vehicles manufactured without 
deviation from Mercedes-Benz's specification would have wiped 91.4% of 
Area A and 94.3% of Area B. In the worst-case scenario described by 
Mercedes-Benz, comparing the manufacturing deviation to Mercedes-Benz's 
design specification, the percent of Area A wiped decreases by 0.4% to 
the aforementioned 91% of Area A's total area and the percent of Area B 
wiped decreases by 0.5% to the aforementioned 93.8% of Area B's total 
area. There is no change in the wiped portion of Area C (the area of 
the windshield directly in front of the driver).
    3. NHTSA also considered the location within Area B affected by the 
manufacturing deviation. The reduction in wiped area is located at the 
outer edge of Area B on the driver's side--with greater deviation in 
wiper coverage toward the top of the windshield--where the impact to 
visibility is less likely to create a safety risk. A depiction of the 
wiper deviation was provided by Mercedes-Benz in the petition and was 
updated on July 9, 2020, after NHTSA requested additional information. 
Both depictions are available on the FDMS website.
    4. Although Mercedes-Benz's petition cited a letter of 
interpretation that delayed enforcement of the threshold for minimum 
wiped area for Area B, NHTSA did not consider this to be persuasive. 
The delay at issue resulted from the agency's determination that strict 
enforcement would be inequitable. NHTSA did not determine that the 
requirements of the Standard should be relaxed. Our analysis here is 
based on the location and magnitude of the specific noncompliance as 
detailed in this notice and the documents included in the docket.
    5. NHTSA has determined, based on both the magnitude and the 
location of the wiper deviation, that the difference between a 
compliant vehicle (produced without the manufacturing deviation) and a 
worst-case noncompliant vehicle (produced with the manufacturing 
deviation) is unlikely to impact visibility in a manner that would be 
consequential to safety.

VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA finds that Mercedes-Benz 
has met its burden of persuasion that the subject FMVSS No. 104 
noncompliance in the affected vehicles is inconsequential to motor 
vehicle safety. Accordingly, Mercedes-Benz's petition is hereby 
granted, and Mercedes-Benz is exempted from the obligation of providing 
notification of, and a free remedy for, that noncompliance under 49 
U.S.C. 30118 and 30120.
    NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 
30120(h)) that permit manufacturers to file petitions for a 
determination of inconsequentiality allow NHTSA to exempt manufacturers 
only from the duties found in sections 30118 and 30120, respectively, 
to notify owners, purchasers, and dealers of a defect or noncompliance 
and to remedy the defect or noncompliance. Therefore, this decision 
only applies to the subject vehicles that Mercedes-Benz no longer

[[Page 74212]]

controlled at the time it determined that the noncompliance existed. 
However, the granting of this petition does not relieve vehicle 
distributors and dealers of the prohibitions on the sale, offer for 
sale, or introduction or delivery for introduction into interstate 
commerce of the noncompliant vehicles under their control after 
Mercedes-Benz notified them that the subject noncompliance existed.

(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49 
CFR 1.95 and 501.8.)

Otto G. Matheke III,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2022-26270 Filed 12-1-22; 8:45 am]
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